Dismissing a sick employee

Can you dismiss your sick employee?

You can dismiss an employee who has been sick or unable to work after they have been on sick leave for 2 years. During those 2 years, you and your employee must do everything you can to make it possible for them to get back to work. You need to be able to prove you have taken these reintegration steps. You also have to keep paying their wages in those 2 years. Read more about your obligations towards sick employees.

Dismissal before your employee has been sick for 2 years

In a few cases you are allowed to dismiss your sick employee during the first 2 years of their disability to work. For example:

• during the trial period

• in the event of instant dismissal

• in the event of bankruptcy

• your employee falls ill after you have dismissed them, and the dismissal is not the cause of their illness
• your employee does not cooperate in the reintegration process

Read more about grounds for dismissal.

Dismissal by mutual consent after 2 years

Has your employee been sick or incapacitated for work for more than 2 years? Then you can agree to end the contract together with your employee. This is called dismissal by mutual consent. In that case you do not start a dismissal procedure, instead you come to an agreement about the dismissal. You have to lay this down in a settlement agreement (vaststellingsovereenkomst). This contains the terms under which the contract will end. If you have such an agreement, you do not need to apply to the Employee Insurance Agency UWV for permission to dismiss the employee.

Your employee does not agree with their dismissal

Do you and your employee fail to reach an agreement? Then you can apply to UWV for permission to dismiss them. In this case, you need to prove that your employee has been ill or incapacitated for work long-term. The request for dismissal contains the following:

• Information stating that your employee is no longer able to carry out their work due to illness or disability.
• You expect that your employee will be unable to perform their duties within 26 weeks, even with adjustments.
• What you have done to redeploy the employee to another suitable role.
• Information showing that the dismissal ban in case of illness or incapacity for work has expired. The dismissal ban usually lasts for 2 years.

Do you end the employment contract without a dismissal permission? The dismissal is not valid. The court can repeal the dismissal. In that case, the employment contract remains in place and you have to keep paying your employee their wages.

Transition payment

When you dismiss your employee, you have to pay them a transition payment. Your employee can use this money to retrain for another job, for example. The transition payment is mandatory for permanent and fixed-term contracts. You pay your employee for the entire duration of the employment. That includes the period that they were off sick.

You may be able to apply for a transition payment compensation from UWV.

Dismissal during sickness on a temporary contract

You cannot simply dismiss a sick employee on a temporary contract (in Dutch). You must keep paying their wages until the end date of the contract. After that, the Sickness Benefits Act (Ziektewet, Zw) takes over. You report your employee's illness on the last day of their contract. You no longer have to pay wages.

Self-insurer for the Sickness Benefits Act

In some cases you also pay the premium for the Sickness Benefit Act after the contract has ended. For example, if you are a self-insurer for the Sickness Benefits Act. Self-insurers pay lower premiums for employee insurances. Does your employee fall ill or become incapacitated for work? Then you pay their benefits, not UWV.

An employee who is regularly off sick

Is your employee off sick regularly, rather than for long periods? And does this have an impact on your business? For example, because it affects the work or the workflow? In that case, you may dismiss your employee if:

• your employee is regularly, but not long-term, off sick
• it is not because you have failed to provide good working conditions
• your employee is unable to return to work (in an adjusted role) within 26 weeks

The court will assess whether you may dismiss your employee on these grounds. You must have an expert report from UWV.